united states district court southern district of new …€¦ · three years ago, news reports...

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

AMERICAN CIVIL LIBERTIES UNION and AMERICAN CIVIL LIBERTIES UNION FOUNDATION,

Plaintiffs,

v.

DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, and DEPARTMENT OF STATE,

Defendants.

No. 17 Civ. 09972 (ER)

Hon. Edgardo Ramos United States District Judge

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT &

IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Brett Max Kaufman Charles Hogle Hina Shamsi American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, New York 10004 T: 212.549.2500 F: 212.549.2654 [email protected] Counsel for Plaintiffs

Case 1:17-cv-09972-ER Document 33 Filed 03/25/20 of 32

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TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 1

STATEMENT OF FACTS ............................................................................................................. 2

STANDARD OF REVIEW ............................................................................................................ 6

LEGAL FRAMEWORK ................................................................................................................ 6

I. FOIA and Glomar Responses ............................................................................................. 6

II. Official acknowledgment doctrine ...................................................................................... 7

ARGUMENT .................................................................................................................................. 8

I. The Defense Department has waived its ability to issue a Glomar response under the official-acknowledgment doctrine. ..................................................................................... 9

A. The information disclosed in the Report matches the specific information the ACLU’s request seeks because the Report confirms both that the PSP exists and that it supersedes the PPG. ................................................................................ 10

B. The Report is an official and documented disclosure. ............................................. 12

II. Independent of waiver, Defendants’ Glomar responses fail because the government’s justifications for them are vague, illogical, and implausible. ........................................... 22

CONCLUSION ............................................................................................................................. 25


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TABLE OF AUTHORITIES

Cases

ACLU v. CIA (Drones FOIA), 710 F.3d 422 (D.C. Cir. 2013) ........................................................................................... passim

ACLU v. DOD, 628 F.3d 612 (D.C. Cir. 2011) .................................................................................................. 13

ACLU v. DOD (Yemen Raid FOIA), 322 F. Supp. 3d 464 (S.D.N.Y. 2018) ............................................................................... passim

ACLU v. NSA, 925 F.3d 576 (2d Cir. 2019)........................................................................................................ 6

Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362 (4th Cir. 1975) ............................................................................................ 13, 21

Ameziane v. Obama, 699 F.3d 488 (D.C. Cir. 2012) .................................................................................................. 19

Ctr. for Constitutional Rights v. CIA, 765 F.3d 161 (2d Cir. 2014)................................................................................................ 22, 24

Dep’t of Air Force v. Rose, 425 U.S. 352 (1976) .................................................................................................................... 6

Elec. Privacy Info. Ctr. v. NSA, 678 F.3d 926 (D.C. Cir. 2012) ............................................................................................ 17, 24

Fitzgibbon v. CIA, 911 F.2d 755 (D.C. Cir. 1990) ........................................................................................... passim

Florez v. CIA, 829 F.3d 178 (2d Cir. 2016)............................................................................................... passim

Frugone v. CIA, 169 F.3d 772 (D.C. Cir. 1999) ...................................................................................... 16, 17, 20

Gardels v. CIA, 689 F.2d 1100 (D.C. Cir. 1982) .......................................................................................... 13, 24

Hayden v. NSA/Cent. Sec. Serv., 608 F.2d 1381 (D.C. Cir. 1979) ................................................................................................ 22

Hudson River Sloop Clearwater, Inc. v. Dep’t of Navy, 891 F.2d 414 (2d Cir. 1989)...................................................................................................... 16

James Madison Project v. DOJ, 302 F. Supp. 3d 12 (D.D.C. 2018) ........................................................................................ 8, 10

Larson v. Dep’t of State, 565 F.3d 857 (D.C. Cir. 2009) .................................................................................................. 22


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Leopold v. CIA, No. CV 19-978 (RC), 2019 WL 5814026 (D.D.C. Nov. 7, 2019) ............................................ 25

Main St. Legal Servs. v. NSC, 811 F.3d 542 (2d Cir. 2016)...................................................................................................... 18

Milner v. Dep’t of Navy, 562 U.S. 562 (2011) .................................................................................................................... 6

Mobley v. CIA, 806 F.3d 568 (D.C. Cir. 2015) ............................................................................................ 15, 17

Montgomery v. IRS, 330 F. Supp. 3d 161 (D.D.C. 2018) .......................................................................................... 15

N.Y. Times Co. v. CIA, 314 F. Supp. 3d 519 (S.D.N.Y. 2018) ................................................................................ 17, 18

N.Y. Times Co. v. DOJ, 756 F.3d 100 (2d Cir. 2014) ..................................................................................... 7, 18, 22, 24

N.Y. Times Co. v. DOJ, 872 F. Supp. 2d 309 (S.D.N.Y. 2012) ........................................................................................ 2

Roth v. DOJ, 642 F.3d 1161 (D.C. Cir. 2011) .................................................................................................. 6

Schlesinger v. CIA, 591 F. Supp. 60 (D.D.C. 1984) ................................................................................................. 13

Snepp v. United States, 444 U.S. 507 (1980) .................................................................................................................. 19

United States v. Brown, 843 F.3d 74 (2d Cir. 2016)........................................................................................................ 17

United States v. Jaimes-Jaimes, 406 F.3d 845 (7th Cir. 2005) .................................................................................................... 17

United States v. Olano, 507 U.S. 725 (1993) .................................................................................................................. 17

Watts v. Indiana, 338 U.S. 49 (1949) .................................................................................................................... 25

Wilner v. NSA, 592 F.3d 60 (2d Cir. 2009)................................................................................................ 6, 8, 22

Wilson v. CIA, 586 F.3d 171 (2d Cir. 2009)............................................................................................... passim

Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2007) .......................................................................................... 7, 9, 13


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Statutes

5 U.S.C. § 552 ................................................................................................................................. 8

Other Authorities 112 Cong. Rec. 13031 (1966), reprinted in Subcomm. on Admin. Practice, S. Comm. on the Judiciary, 93d Cong., Freedom of Information Act Source Book: Legislative Materials, Cases, Articles, at 70 (1974) .................................................................................... 22

Br. for Defs.–Appellants, ACLU v. DOJ, No. 17-157 (2d Cir. Apr. 21, 2017), ECF No. 33............................................................................................................................................... 18

Charlie Savage & Eric Schmitt, Trump Poised to Drop Some Limits on Drone Strikes and Commando Raids, N.Y. Times, Sept. 21, 2017 ................................................................... 3

Charlie Savage, U.S. Releases Rules for Airstrike Killings of Terror Suspects, N.Y. Times, Aug. 6, 2016 ................................................................................................................................ 3

Charlie Savage, Will Congress Ever Limit the Forever-Expanding 9/11 War?, N.Y. Times, Oct. 28, 2017 ............................................................................................................................... 3

DOD Authorization for Appropriations for Fiscal Year 2018 and the Future Years Defense Program: Hearing before the S. Comm. on Armed Servs., 115th Cong. 448 (Mar. 9, 2017) ........................................................................................................................... 10

Dylan Matthews, Everything You Need to Know About the Drone Debate, In One FAQ, Wash. Post., Mar. 8, 2013 ........................................................................................................... 2

Eric Schmitt, Pentagon Ends Review of Deadly Niger Ambush, Again Blaming Junior Officers, N.Y. Times, June 6, 2019 ....................................................................................... 4, 14

Home, Dep’t of Def., Executive Services Directorate, https://www.esd.whs.mil ........................ 14 Jessica Purkiss & Jack Serle, Obama’s Covert Drone War in Numbers: Ten Times More Strikes than Bush, Bureau of Investigative Journalism, Jan. 17, 2017 ....................................... 2

Paul D. Shinkman, ‘Areas of Active Hostilities’: Trump’s Troubling Increases to Obama’s Wars, U.S. News, May 16, 2017................................................................................................. 2

Press Release, Office of the Press Secretary, White House, Fact Sheet: U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities (May 23, 2013) ............................................. 2

Reply Br. for Defs.–Appellants, ACLU v. DOJ, No. 17-157 (2d Cir. Aug. 4, 2017), ECF No. 59 ....................................................................................................................................... 18

Republican Policy Committee Statement on Freedom of Information Legislation, S. 1160, 112 Cong. Rec. 13020 (1966), reprinted in Subcomm. on Admin. Practice, S. Comm. on the Judiciary, 93d Cong., Freedom of Information Act Source Book: Legislative Materials, Cases, Articles, at 59 (1974) .................................................................................... 22

Resp. Br. of Pls.–Appellees, ACLU v. DOJ, No. 17-157 (2d Cir. July 17, 2017), ECF No. 47 ....................................................................................................................................... 18


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Rukmini Callimachi et al., ‘An Endless War’: Why 4 U.S. Soldiers Died in a Remote African Desert, N.Y. Times, Feb. 20, 2018 ................................................................................ 4

White House, National Security Council, https://www.whitehouse.gov/nsc ............................... 20 White House, Procedures for Approving Direct Action Against Terrorist Targets Located Outside the United States and Areas of Active Hostilities (May 22, 2013) ............... 11


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INTRODUCTION

This case asks just how far the government can stretch logic, plausibility, and common

sense in the service of enforcing its own version of official secrecy.

Three years ago, news reports indicated that President Trump had issued new policy

rules—dubbed the “Principles, Standards, and Procedures,” or “PSP”—governing where, how,

and after what process the government could use lethal force abroad outside of war zones. These

rules relaxed more stringent ones put in place by President Obama in 2013, which included

safeguards intended to limit the killing of civilians. In June 2019, the Department of Defense

(“Defense Department”) disseminated an official report on its website and to reporters evaluating

the department’s multiple policy and operational failures surrounding a military raid in Niger

that left more than thirty people, including four U.S. soldiers, dead. In that report, the Defense

Department both named the Trump administration’s new lethal-force rules and explicitly

acknowledged that those rules had superseded the Obama administration’s rules.

Despite the publication of the report, when the American Civil Liberties Union sued

under the Freedom of Information Act (“FOIA”) to obtain the Trump administration’s new

lethal-force rules, three government agencies effectively insisted that the report’s

acknowledgments of those rules had never happened. The three agencies—the Departments of

Defense, State, and Justice—maintained that even to acknowledge the existence of the new rules

would compromise national security, issuing a so-called “Glomar” response and refusing to

confirm or deny whether they possessed such records.

This Court should not abide what the D.C. Circuit once called, in a similarly reality-

bending case, this “fiction of deniability.” ACLU v. CIA (Drones FOIA), 710 F.3d 422, 431

(D.C. Cir. 2013) (Garland, C.J.). The Defense Department’s report is an official

acknowledgment of the new PSP and its status as superseding the Obama administration’s lethal-


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force policy rules. As a result, the Defense Department has waived its right under FOIA to rely

on the secrecy of the PSP in issuing a Glomar response. And as evidence in the record in this

case, the report undermines the other agencies’ Glomar responses as illogical and implausible—

and therefore unlawful. Plaintiffs respectfully request that the Court reject the agencies’

responses and order them to search for responsive records.

STATEMENT OF FACTS1

The U.S. government has carried out lethal strikes abroad, outside of war zones, since at

least 2001—including through the use of armed drones.2 In May 2013, the Obama administration

promulgated legal and policy guidelines governing this publicly controversial program of lethal

strikes. These guidelines were known as the “Presidential Policy Guidance,” or “PPG.” Although

the administration issued the PPG as a classified document, it published a “fact sheet,” titled

“U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations

Outside the United States and Areas of Active Hostilities,” summarizing the PPG’s provisions.3

Later, in August 2016, the ACLU secured the public release of a minimally redacted version of

1 While parties ordinarily file Local Rule 56.1 Statements of Material Facts when moving for summary judgment, this Circuit does not require such statements in FOIA cases. See, e.g., N.Y. Times Co. v. DOJ, 872 F. Supp. 2d 309, 313 (S.D.N.Y. 2012). 2 See Dylan Matthews, Everything You Need to Know About the Drone Debate, In One FAQ, Wash. Post., Mar. 8, 2013, https://wapo.st/2xhjR80; Jessica Purkiss & Jack Serle, Obama’s Covert Drone War in Numbers: Ten Times More Strikes than Bush, Bureau of Investigative Journalism, Jan. 17, 2017, https://www.thebureauinvestigates.com/stories/2017-01-17/obamas-covert-drone-war-in-numbers-ten-times-more-strikes-than-bush; Paul D. Shinkman, ‘Areas of Active Hostilities’: Trump’s Troubling Increases to Obama’s Wars, U.S. News, May 16, 2017, https://www.usnews.com/news/world/articles/2017-05-16/areas-of-active-hostilities-trumps-troubling-increases-to-obamas-wars. 3 Press Release, Office of the Press Secretary, White House, Fact Sheet: U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities (May 23, 2013), https://obamawhitehouse.archives.gov/the-press-office/2013/05/23/fact-sheet-us-policy-standards-and-procedures-use-force-counterterrorism.


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the PPG through a FOIA lawsuit.4

In 2017, the Trump administration reportedly released a new, less restrictive policy.5 This

new policy is known as the “Principles, Standards, and Procedures,” or “PSP.”6 The PSP

reportedly eliminates safeguards contained in the previous PPG policy, including measures

intended to limit civilian deaths.7

The public has a strong interest in the government’s legal and policy positions regarding

the use of lethal force abroad, not least if civilians may be killed in the name of American

national security. Accordingly, after public reports indicated that the Trump administration had

amended the PPG and formally issued the PSP in its stead, the ACLU submitted a FOIA request

to Defendants seeking the release of the PSP. Compl. ¶¶ 1–2, ECF No. 1 (Dec. 21, 2017); see

also Exhibit 1 to Declaration of Charles Hogle (“Hogle Decl.”) (ACLU FOIA Request). Having

received no response, the ACLU initiated this lawsuit to enforce its request. In their answer to

the ACLU’s complaint, Defendants issued blanket “Glomar” responses, stating that they were

“unable to confirm or deny the existence of” the PSP “without revealing information that [was]

exempt from disclosure under FOIA.” Answer 9, ECF No. 14 (Feb. 1, 2018). While Defendants

did not specify in their answer which FOIA exemption or exemptions justified their Glomar

responses, see id., they identified Exemptions 1 and 3 as the basis for their response in a pre-

motion letter to this Court, see Letter from Sarah S. Normand at 2, Assistant U.S. Att’y, to Hon.

4 See Charlie Savage, U.S. Releases Rules for Airstrike Killings of Terror Suspects, N.Y. Times, Aug. 6, 2016, https://nyti.ms/2aJL3w6 (“Airstrike Article”); see also ACLU v. DOJ, No. 15 Civ. 1954 (CM) (S.D.N.Y. filed Mar. 16, 2015). 5 See Charlie Savage, Will Congress Ever Limit the Forever-Expanding 9/11 War?, N.Y. Times, Oct. 28, 2017, https://nyti.ms/2BbxmDC. 6 See Charlie Savage & Eric Schmitt, Trump Poised to Drop Some Limits on Drone Strikes and Commando Raids, N.Y. Times, Sept. 21, 2017, https://nyti.ms/2jPwvnB. 7 See Airstrike Article, supra note 4.


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Edgardo Ramos, ECF No. 24 (Jan. 13, 2020) (“Normand Letter”).

On June 5, 2019, the Defense Department released a public report (the “Report”) on the

results of an administrative investigation into an October 2017 military raid in Niger that left

four U.S. soldiers, four Nigerien soldiers, an interpreter, and a number of alleged Islamic State

militants dead.8 The Defense Department posted the Report to one of its own public websites.9 It

also provided the Report to members of the news media, which proceeded to publish stories

about it.10

The Report makes multiple explicit references to the PSP, including that the PSP

“supersedes” previous executive policies governing U.S. “direct action against terrorists” in

Africa. Exhibit 2.7 to Hogle Decl. at 109; see Ex. 2.3 to Hogle Decl. at 8.11 As part of a

discussion concluding that “[o]perational constraints meant to minimize the likelihood of [U.S.

forces] engaging in direct combat [in Niger] are insufficient,” the Report reads:

(S/NF) On 3 October 2017, the Executive Policy governing U.S. direct action against terrorists on the continent of Africa was codified in the “U.S. Policy Standards and Procedures for the use of force in counterterrorism operations outside the United States and areas of active hostilities,” (CT-PPG). Since 3 October, the President has issued new guidance on [REDACTED UNDER EXEMPTION 1]. The PSP supersedes the CT-PPG and makes substantive changes to the standards and procedures for approval of U.S. direct action missions, but the core principle remains

8 See, e.g., Rukmini Callimachi et al., ‘An Endless War’: Why 4 U.S. Soldiers Died in a Remote African Desert, N.Y. Times, Feb. 20, 2018, https://nyti.ms/2C4ny25. 9 The Report was posted to the Executive Services Directorate’s website, at https://www.esd.whs.mil. Each section of the Report remains retrievable via the public Internet. See Hogle Decl. at 2 n.1 (listing URLs). 10 See, e.g., Eric Schmitt, Pentagon Ends Review of Deadly Niger Ambush, Again Blaming Junior Officers, N.Y. Times, June 6, 2019, https://nyti.ms/2XvkROf (“The Pentagon provided copies of the 176-page redacted report to reporters on Wednesday.”); see also Declaration of Eric Schmitt (“Schmitt Decl.”) ¶ 4 & Ex. A (detailing and documenting DOD’s public release of the Report), ECF No. 19. 11 The Report is divided into seven sections, which Plaintiffs have numbered as Ex. 2.1 through Ex. 2.7 in this memorandum.


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the same: decisions to use U.S. forces to conduct [REDACTED UNDER EXEMPTION 1] will be made at the most senior levels after reasonable review and considerable oversight.

Ex. 2.3 at 8 (emphasis added); see also Ex. 2.7 at 109. In its glossary, the Report defines “CT-

PPG” as “Counterterrorism-Presidential Policy Guidance.” Ex. 2.7 at 169.

Three weeks after the publication of the Report, the ACLU wrote to Defendants and

asked them to withdraw their Glomar responses in light of the Defense Department’s official

statements confirming the existence of the PSP. See Exhibit 3 to Hogle Decl. At some later date,

the Defense Department removed the Report from its website (though it remains archived

elsewhere on the Internet).12 On September 13, 2019, Defendants informed the ACLU that

because the Defense Department “does not have authority to declassify the information at issue,”

Defendants would “maintain their Glomar response[s] to the FOIA request.” Exhibit 4 to Hogle

Decl. at 1. For support, Defendants cited Section 3.1(b) of Executive Order 13,526, which

contains a general overview of classification authority in the Executive Branch. See Exhibit 4 to

Hogle Decl. at 1.

On January 8, 2020, the ACLU filed a letter with the Court indicating its intent to move

for partial summary judgment against Defendants.13 Defendants replied on January 13, 2020,

asserting that their Glomar responses remained justified under FOIA Exemptions 1 and 3, and

indicating an intent to move for summary judgment against the ACLU.14 Pursuant to the Court’s

scheduling order, Defendants filed their motion for summary judgment and supporting

memorandum of law on February 26, 2020, ECF Nos. 28, 31.

12 See supra note 9. 13 Letter from Brett Max Kaufman, ACLU, to Hon. Edgardo Ramos, ECF No. 23 (Jan. 8, 2020). 14 Normand Letter at 2.


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STANDARD OF REVIEW

The Court reviews de novo an agency’s justifications for issuing a Glomar response.

ACLU v. DOD (Yemen Raid FOIA), 322 F. Supp. 3d 464, 473 (S.D.N.Y. 2018).

LEGAL FRAMEWORK

I. FOIA and Glomar Responses

FOIA’s basic presumption is that all government records responsive to a request must be

disclosed. ACLU v. NSA, 925 F.3d 576, 588 (2d Cir. 2019). Because Congress recognized that

the disclosure of certain records might be contrary to legitimate public or private interests, FOIA

allows for nine narrow, exclusive exemptions. Milner v. Dep’t of Navy, 562 U.S. 562, 565

(2011). These “limited exemptions do not obscure the basic policy that disclosure, not secrecy, is

the dominant objective of the Act.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976).

Consistent with that objective, when an agency refuses to disclose records responsive to a

FOIA request, the agency bears the burden of justifying its refusal—that is, the agency must

prove that the withheld records fall within one of the FOIA’s exemptions. Wilner v. NSA, 592

F.3d 60, 68 (2d Cir. 2009). This burden is high. FOIA exemptions are to be “narrowly

construed,” Milner, 562 U.S. at 565 (citation omitted), and “all doubts as to the applicability of

[an] exemption must be resolved in favor of disclosure,” Wilner, 592 F.3d at 69.

In narrow and unusual circumstances, an agency may refuse to confirm or deny the

existence (or nonexistence) of records responsive to a FOIA request. This refusal to confirm or

deny records is known as a Glomar response. Glomar responses are valid only when the act of

“confirming or denying the existence of records would itself cause harm cognizable under an

FOIA exception.” Roth v. DOJ, 642 F.3d 1161, 1178 (D.C. Cir. 2011) (citation omitted).

A Glomar response requires an especially strong justification. Indeed, in the Second

Circuit, Glomar responses are permitted “only in unusual circumstances and only [when


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supported] by a particularly persuasive affidavit.” Florez v. CIA, 829 F.3d 178, 182 (2d Cir.

2016) (quotation marks omitted); Yemen Raid FOIA, 322 F. Supp. 3d at 474 (same). An agency’s

justification for a Glomar response must include “reasonably detailed explanations” of how

disclosing the existence (or non-existence) of the requested records would cause a cognizable

harm under FOIA. N.Y. Times Co. v. DOJ, 756 F.3d 100, 112 (2d Cir. 2014). These explanations,

no matter how detailed, must be both logical and plausible in light of all of the evidence in the

record; if they are not, the agency’s Glomar response is unlawful. See Florez, 829 F.3d at 184–

85; N.Y. Times Co., 756 F.3d at 112.

II. Official acknowledgment doctrine

Even when a FOIA exemption would otherwise permit an agency to withhold responsive

records, the agency cannot do so if the government has already officially acknowledged the

information in the records. Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990). An official

acknowledgment occurs when the government releases information that (1) is as specific as the

information sought by the FOIA requestor, (2) matches the information sought by the FOIA

requestor, and (3) “was ‘made public through an official and documented disclosure.’” Wilson v.

CIA, 586 F.3d 171, 186 (2d Cir. 2009) (quoting Wolf v. CIA, 473 F.3d 370, 378 (D.C. Cir.

2007)). Notably, the Second Circuit has cautioned against “rigid application” of the Wilson test

“in view of its questionable provenance.” N.Y. Times Co., 756 F.3d at 120 n.19 (reviewing the

cases upon which the test is purportedly based); see Yemen Raid FOIA, 322 F. Supp. 3d at 480

(“The Second Circuit has recently called into question how strictly the Wilson test is to be

applied in practice[.]”).

The official-acknowledgment doctrine prohibits an agency from issuing a Glomar


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response regarding records whose existence the government has officially disclosed.15 Wilner,

592 F.3d at 70. Indeed, when an agency (or its parent) officially acknowledges that certain

records exist or do not exist, the agency waives its ability to issue a Glomar response to a FOIA

request. See Drones FOIA, 710 F.3d at 429 n.7; Florez, 829 F.3d at 186.

Under the official-acknowledgment doctrine, one agency’s ability to issue a Glomar

response is not necessarily waived by another agency’s disclosures. See Florez, 829 F.3d at 186.

Nevertheless, the Second Circuit has squarely held that evidence of a public disclosure by one

agency remains relevant to evaluating whether another agency’s Glomar response is lawful under

the ordinary standard for evaluating agency FOIA responses—whether they are both logical and

plausible. Id. Thus, in a Glomar case, even if a government agency has not itself disclosed the

existence or non-existence of records responsive to a FOIA request, its Glomar response may fail

on the merits if another agency’s disclosures render it illogical and implausible. Id.

ARGUMENT

To justify their Glomar responses, Defendants assert that they cannot acknowledge the

existence of the PSP without causing a harm cognizable under FOIA Exemptions 1 and 3.16

15 The government can officially acknowledge the existence or non-existence of records either directly or indirectly. A direct acknowledgment occurs when the agency makes a statement expressly admitting the existence (or non-existence) of the records. See Yemen Raid FOIA, 322 F. Supp. 3d at 475; James Madison Project v. DOJ, 302 F. Supp. 3d 12, 22 (D.D.C. 2018). An indirect acknowledgment occurs when the “substance of an official statement and the context in which it is made permits the inescapable inference that the requested records in fact exist.” Yemen Raid FOIA, 322 F. Supp. 3d at 475 (quoting James Madison Project, 302 F. Supp. 3d at 22). 16 Normand Letter at 2. Exemption 1 permits an agency to withhold responsive records that “(A) [are] specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order . . . .” 5 U.S.C. § 552(b)(1). Exemption 3 permits an agency to withhold responsive records that are “specifically exempted from disclosure by [a] statute” other than FOIA. § 552(b)(3).


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Defendants’ position is not supported by the record. First, the Defense Department has officially

acknowledged through its Report both that the PSP exists and that it supersedes the PPG;

therefore, the Defense Department has waived its ability to maintain a Glomar response to the

ACLU’s FOIA request. Second, the Report leaves no room for rational doubt as to whether the

Trump administration has issued a policy on the use of lethal force abroad that supersedes the

PPG, making it illogical and implausible for any of the Defendants to refuse to confirm or deny

the existence of records responsive to the ACLU’s request. Ultimately, all three Defendants’

Glomar responses rest on “a fiction of deniability that no reasonable person would regard as

plausible.” Drones FOIA, 710 F.3d at 431.

I. The Defense Department has waived its ability to issue a Glomar response under the official-acknowledgment doctrine.

The Defense Department has waived its ability to issue a Glomar response to the ACLU’s

FOIA request by officially acknowledging the existence of responsive records. See Drones

FOIA, 710 F.3d at 427; Yemen Raid FOIA, 322 F. Supp. 3d at 479. The Report discloses the

existence of an executive policy, the “PSP,” that supersedes the CT-PPG—that is, the

“Presidential Policy Guidance” issued by the Obama administration in 2013. Thus, the

information disclosed in the Report matches the specific information requested in the ACLU’s

FOIA request. See Wolf, 473 F.3d at 379 (“In the Glomar context . . . if the prior disclosure

establishes the existence (or not) of records responsive to the FOIA request, the prior disclosure

necessarily matches both the information at issue—the existence of records—and the specific

request for that information.”); Yemen Raid FOIA, 322 F. Supp. 3d at 480 n.7. Furthermore,

because the Report was authored and approved by high-ranking members of the Defense

Department and disseminated to the public through Defense Department channels, the Report

qualifies as an “official and documented disclosure.” Fitzgibbon, 911 F.2d at 765. The Report


10

therefore constitutes an official acknowledgment of the existence of records responsive to the

ACLU’s request.

A. The information disclosed in the Report matches the specific information the ACLU’s request seeks because the Report confirms both that the PSP exists and that it supersedes the PPG.

The Report confirms the existence of the PSP—indeed, the fact of the PSP’s existence “is

plain on the face of” the Report. James Madison Project, 302 F. Supp. 3d at 22. In a paragraph

describing executive policies “governing U.S. direct action against terrorists,” the Report states

that “[t]he PSP supersedes the CT-PPG and makes substantive changes to the standards and

procedures for approval of U.S. direct action missions . . . .” Ex. 2.3 at 8. Separately, the Report

states that the military’s “investigation” of a controversial and highly publicized combat

engagement in Niger “revealed several problems with the advise, assist, and accompany activity

as it relates to the CT-PPG and the PSP.” Ex. 2.3 at 9; see Ex. 2.7 at 111.

Additionally, the Report flatly states that “the PSP supersedes the CT-PPG.” Ex. 2.3 at 8;

Ex. 2.7 at 109. The term “CT-PPG” clearly refers to the PPG—i.e., the use-of-force policy issued

by the Obama administration in 2013. Indeed, the Report’s own Glossary defines “CT-PPG” as

“Counterterrorism-Presidential Policy Guidance,” Ex. 2.7 at 169, which echoes the title of the

Obama administration’s 2013 policy. And the very Defense Department official who ordered the

creation of the Report, General Thomas D. Waldhauser, has used the abbreviation “CT-PPG” to

refer to the Obama administration’s 2013 policy in congressional testimony. See DOD

Authorization for Appropriations for Fiscal Year 2018 and the Future Years Defense Program:

Hearing before the S. Comm. on Armed Servs., 115th Cong. 448 (Mar. 9, 2017) (statement of

Gen. Thomas D. Waldhauser), https://www.govinfo.gov/content/pkg/CHRG-115shrg39567/

html/CHRG-115shrg39567.htm (Question 24).


11

The government’s efforts to cast doubt on the meaning of “CT-PPG” are contradicted by

the Report itself. First, the government notes that, in one of the paragraphs that references the

CT-PPG, the Report seems to refer to the CT-PPG by a different title: “U.S. Policy Standards

and Procedures for the use of force in counterterrorism operations outside the United States and

areas of active hostilities.” Gov’t Br. 14; see Ex. 2.3 at 8; Ex. 2.7 at 109. But this apparent

discrepancy merely confirms that “CT-PPG” refers to the use-of-force policy that the Obama

administration issued in 2013. The full title given for the “CT-PPG” in the Report is exactly the

same as the title of the 2013 unclassified “Fact Sheet” that summarized the Obama

administration’s policy. And in fact, in a footnote to the relevant paragraph, the Report’s authors

explain that “the Obama administration published an unclassified ‘Fact Sheet’ outlining the

principles of the [CT-PPG],” and that to avoid quoting from the CT-PPG itself, the authors have

quoted from the Obama administration’s unclassified Fact Sheet. Ex. 2.7 at 109 n.14. Moreover,

the PPG itself is replete with references to “counterterrorism”—which it abbreviates,

unsurprisingly, as “CT”—as well as “CT objectives” and “CT operations.”17 Thus, there is no

doubt that the term “CT-PPG,” as used in the Report, is equivalent to the term “PPG,” as used in

the ACLU’s FOIA request. Both acronyms refer to the use-of-force policy that the Obama

administration issued (and summarized in the unclassified Fact Sheet) in 2013.

Second, the government suggests that the term “CT-PPG” might refer not to the 2013

Obama-era use-of-force policy, but to a 2017 policy that is “limited to” U.S. direct action in

17 White House, Procedures for Approving Direct Action Against Terrorist Targets Located Outside the United States and Areas of Active Hostilities (May 22, 2013), https://www.justice.gov/oip/foia-library/procedures_for_approving_direct_action_against_terrorist_targets/download.


12

Africa. Gov’t Br. 14.18 That reading is baseless. The Report does state that the CT-PPG was,

“[o]n 3 October 2017, the Executive Policy governing U.S. direct action against terrorists on the

continent of Africa.” Ex. 2.3 at 8. But that merely (and obviously) means that the CT-PPG was

the effective use-of-force policy in place on that date in Africa (where the incident leading to the

Report took place). And, dispelling any doubt, the Report explains, “[s]ince 3 October, the

President has issued new guidance on [REDACTED],” clarifying in the very next sentence that

“the PSP supersedes the CT-PPG and makes substantive changes to the standards and procedures

for approval of U.S. direct action missions . . . .” Ex. 2.3 at 8; see Ex. 2.7 at 109.

Third, the government suggests that the Report’s redaction of the full title of the

document it shortens as the “PSP” creates meaningful ambiguity as to whether that policy exists.

See Gov’t Br. 14 (“[I]t is not clear to what ‘PSP’ refers.”). That is implausible. It is crystal clear

on the face of the Report that the “PSP,” whatever its full title, is a policy that was issued by the

Trump administration in 2017, governs U.S. direct action against terrorists abroad, and replaces

the PPG. Thus, even if the full title of the document referenced in the Report were not

“Principles, Standards, and Procedures,” there would be no doubt that the document called the

“PSP” is responsive to the ACLU’s FOIA request. See Ex. 1 at 6 n.21 (“The ACLU’s FOIA

request should be construed to include the record containing the Trump administration’s rules

governing the use of lethal force as described in Part I, even if the final version of this document

bears a different title or form than that specifically requested here.”).

B. The Report is an official and documented disclosure.

A disclosure of classified information constitutes an official acknowledgment when

18 While it cites its supporting declaration for this proposition, see Gov’t Br. 14 (citing only Knight Decl. ¶ 8), the cited paragraph does not mention Africa at all.


13

“made public through an official and documented disclosure.” Wilson, 586 F.3d at 186 (quoting

Wolf, 473 F.3d at 378). As the D.C. Circuit has explained, an “official and documented”

disclosure is one that comes from a government agency or official who is “in a position to know

of [the classified information] officially.” Fitzgibbon, 911 F.2d at 765 (quoting Alfred A. Knopf,

Inc. v. Colby, 509 F.2d 1362, 1370 (4th Cir. 1975)); see Wilson, 586 F.3d at 200–01. This

requirement encapsulates the heart of the official-acknowledgment inquiry: the distinction

between “rumors and speculations,” on the one hand, and “reports of sensitive information

revealed by an official . . . in a position to know of what he spoke,” on the other. Alfred A. Knopf,

Inc., 509 F.2d at 1370; see ACLU v. DOD, 628 F.3d 612, 622 (D.C. Cir. 2011); Schlesinger v.

CIA, 591 F. Supp. 60, 66 (D.D.C. 1984) (defining “official disclosures” as “direct

acknowledgments by an authoritative government source”). The touchstone for official

acknowledgment is whether the disclosure in question leaves “some increment of doubt,” or

whether, by contrast, it will be understood as reliable, credible, and official. Wilson, 586 F.3d at

195; see Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982) (“Official acknowledgement ends

all doubt[.]”).

The Defense Department was inarguably in a position to know whether the PSP had

replaced the PPG and governed uses of lethal force when it authored and publicized the Report.

Contrary to the government’s protestations, there is not the slightest “increment of doubt

regarding the reliability of the” information disclosed in the Report. Gov’t Br. 17 (quoting

Wilson, 586 F.3d at 195). Indeed, after viewing the Report, no member of the public or U.S.

adversary could possibly question whether the Defense Department is, or was, aware of

executive branch policies governing the use of force abroad, including which policies are current

(the PSP) and which have been replaced or revised (the PPG). This is especially obvious because


14

the Report was commissioned and signed by high-ranking Defense Department personnel. The

Report is the product of an investigation by Major General Roger J. Cloutier, Jr., who was

appointed to the task by General Thomas D. Waldhauser, the then-Commander of the U.S.

Africa Command. See Ex. 2.6 at 1. Both generals gave the Report their signed authentication.

See Ex. 2.6 at 4. The imprimatur of these officials makes it all the more clear that there is no

need to “speculate or guess” as to the accuracy of the information the Report reveals. Fitzgibbon,

911 F.2d at 765.

Moreover, the Defense Department itself, using its own resources, took multiple

affirmative steps to disseminate the Report and insert it into the public conversation, making the

Report “a matter[ ] of public record.” Wilson, 586 F.3d at 188 (quotation marks omitted). The

Defense Department posted the Report to the public website of the Executive Services

Directorate, a component of the Defense Department that, among other things, “provides

comprehensive knowledge management, information security and visual information services to

the Office of the Secretary of Defense.”19 At the same time, the Defense Department provided

the Report to reporters at major media outlets, who proceeded to publish stories on it.20 A

disclosure can hardly be more “official” than that.21 And while the government may have acted

19 Home, Dep’t of Def., Executive Services Directorate, https://www.esd.whs.mil. While the Report has been removed from the live website of the Executive Services Directorate, it remains archived and readily available on the Internet. See Hogle Decl. ¶ 7 n. 1. 20 See, e.g., Schmitt, supra note 10; see also Schmitt Decl. ¶ 4 & Ex. A. 21 The government, relying on Wilson, does imply that the Defense Department’s publication and dissemination of the Report does not constitute an “official disclosure” because it is reducible to a “bureaucratic transmittal” that revealed classified information only as a result of “agency ‘negligence.’” Gov’t Br. 16 (quoting Wilson, 586 F.3d at 195 & n. 27). But contrary to the government’s implication, Wilson does not hold that “agency negligence” makes unofficial what would otherwise be an official disclosure; it merely states that even if the CIA had been negligent in failing to mark the letter as classified, its negligence would not change the fact that a disclosure made by a former CIA employee is not equivalent to a disclosure made by the CIA


15

at some point (during this pending litigation) to remove the Report from its website, it does not

argue that its original publication and dissemination were mistaken or inadvertent.22 In these

circumstances, ignoring the Report would yield perverse incentives: If government officials who

perhaps regret their public words could later render them legally meaningless, the government

would acquire a dangerous power to rewrite history through the use of official, though

unjustified and implausible, secrecy.

Rather than disputing the Report’s authorship and dissemination, the government, relying

principally on Wilson, 586 F.3d at 180–81, and two other cases, argues that the simple fact that

the Report “was made public at one time”—a conspicuous use of the passive voice—“does not

render the disclosure official.” Gov’t Br. 16. Yet what makes the acknowledgment “official” here

is not simply that the Report “was made public,” but that the Defense Department published it.

itself. Wilson, 586 F.3d at 195 & n.27. Moreover, the Defense Department’s dissemination of the Report to the press is utterly unlike sending a private personnel letter to a former employee, which was the “bureaucratic transmittal” at issue in Wilson. 22 On rare occasions, courts have permitted an agency to maintain a Glomar response when the agency’s supposed official acknowledgment was nothing more than a clerical error. See Mobley v. CIA, 806 F.3d 568, 584 (D.C. Cir. 2015) (stating that “a FOIA response” could constitute an official acknowledgment, in contrast to “a simple clerical mistake in FOIA processing”); Montgomery v. IRS, 330 F. Supp. 3d 161, 169 (D.D.C. 2018) (Glomar response was not waived when, in letters responding to a FOIA request, the IRS “mistakenly used standard form language” indicating the existence of unspecified responsive records).

The government has not characterized the Defense Department’s disclosures as clerical errors. Even if it had done so, though, its effort would have been wholly unconvincing. There is every indication that before affirmatively distributing the Report to journalists, the Defense Department carefully redacted it, word by word, under the strictures of FOIA. Indeed, where it first appears in the Report, the term “PSP” is bracketed by extensive redactions, including some within the same sentence; these redactions are labeled “(b)(1),” in reference to FOIA Exemption 1. See Ex. 2.7 at 109. The Report also contains instructions from General Waldhauser “direct[ing] [that] this investigation’s documentary evidence, findings, and recommendations be appropriately classified, declassified, and coordinated for Freedom of Information Act (FOIA) processing.” Ex. 2.2 at 1. Thus, the release of the information in the Report cannot be brushed aside as a non-substantive ministerial fumble.


16

That alone makes this case entirely unlike Wilson. In Wilson, the plaintiff argued that the CIA

had officially acknowledged her employment as a covert CIA agent through two purported

disclosures. The court rejected both. It held that the first disclosure—“private correspondence

sent directly—and only—to [the plaintiff] at her home” by the CIA—was “not ‘public’ in the

sense relevant to the official disclosure doctrine.” Wilson, 586 F.3d at 188 (explaining that the

letter “was not a matter of public record that could be easily discoverable by any interested

member of the public” (cleaned up)). And it held that the second disclosure—the inclusion of the

same private letter in the Congressional Record by a member of Congress—did not

“demonstrate official disclosure by the CIA,” id. at 189 (emphasis added).

The government’s other cases are likewise unhelpful to its argument that the Report is not

an official disclosure. In Hudson River Sloop Clearwater, Inc. v. Department of Navy, 891 F.2d

414 (2d Cir. 1989), the Second Circuit merely held that a former government employee cannot

issue an “official” disclosure sufficient to effect a waiver on behalf of his former agency. See id.

at 422 (“Officials no longer serving with an executive branch department cannot continue to

disclose official agency policy, and certainly they cannot establish what is agency policy through

speculation, no matter how reasonable it may appear to be.”).23 Here, by contrast, the Report was

not disclosed by a former government employee: it was disclosed by the Defense Department,

the very agency now asserting a Glomar response.

And in Frugone v. CIA, 169 F.3d 772 (D.C. Cir. 1999), the D.C. Circuit held that a letter

from the Office of Personnel Management acknowledging a prior relationship between the CIA

23 Hudson also held that the congressional testimony of “various [current] high-ranking Navy officials” did not constitute an official acknowledgment that the Navy intended to deploy nuclear weapons at the New York Harbor Homeport not because the testimony was not “official,” but because it did not match the information requested. 891 F.2d at 421.


17

and a former CIA employee did not defeat an exemption claim by the CIA. See id. at 774–75;

Drones FOIA, 710 F.3d at 429 n.7 (“We have permitted agencies to give a Glomar response

despite the prior disclosure of another, unrelated agency.” (citing Frugone, 169 F.3d at 774–75));

see also Elec. Privacy Info. Ctr. v. NSA, 678 F.3d 926, 933 n.5 (D.C. Cir. 2012) (characterizing

Frugone’s holding as: “only official acknowledgement from the agency from which the

information is being sought can waive an agency’s protective power over records sought under

the FOIA” (emphasis added)); Mobley, 806 F.3d at 583 (citing Frugone for the proposition that

“[d]isclosure by one federal agency does not waive another agency’s right to assert a FOIA

exemption” (emphasis added)).

Here, of course, the issue is not whether the Defense Department’s disclosures have

waived another agency’s ability to maintain a Glomar response. Instead, the Defense

Department, through its own disclosures, has waived its own ability to maintain a Glomar

response.24 That is how waiver operates in the Glomar context. See Florez, 829 F.3d at 186

(waivers of FOIA exemptions through official acknowledgment are “limited only to official and

public disclosures made by the same agency providing the Glomar response” (emphasis added)

(citing Frugone, 169 F.3d at 775)); N.Y. Times Co. v. CIA, 314 F. Supp. 3d 519, 531 (S.D.N.Y.

2018) (“a Glomar response can only be waived by the agency that issued it”).25

24 As discussed below, the Defense Department’s Report is evidence, and therefore has bearing, on the logic and plausibility of the State and Justice Departments’ Glomar responses under Florez. See infra Part II. 25 “The touchstone of waiver is a knowing and intentional decision.” United States v. Jaimes-Jaimes, 406 F.3d 845, 848 (7th Cir. 2005); United States v. Brown, 843 F.3d 74, 81 (2d Cir. 2016) (“Waiver is the intentional relinquishment or abandonment of a known right.” (cleaned up) (quoting United States v. Olano, 507 U.S. 725, 733 (1993)).

Notably, the government itself cited these cases as relevant to the official acknowledgment inquiry in a recent case before the Second Circuit. There, the government argued that the Secretary of State had not officially acknowledged that the government uses


18

Finally, the government asserts that the Report cannot constitute an “official”

acknowledgment because only the National Security Council (“NSC”), and not the Defense

Department, has the authority to declassify the current status of the PPG—and therefore, only the

NSC can officially acknowledge it.26 See Gov’t Br. 15. But no court has ever held that, under the

official acknowledgment doctrine, “official” disclosures can only be made by those who have

declassification authority, and (as explained below) such a rule would make little sense.27

To support its novel argument, the government relies almost exclusively on Wilson. See

Gov’t Br. 14–16. But Wilson does not hold that the authority to declassify information is a

prerequisite to official acknowledgment. It is true that Wilson involved a straightforward factual

situation in which the agency with authority to classify the information at issue (the CIA) was

also the agency asserting secrecy. See 586 F.3d at 186. But Wilson was not a FOIA case in which

official acknowledgment would have resulted in a waiver of statutory authority to withhold

information. See N.Y. Times Co., 756 F.3d at 113–14 (summarizing its conclusion that “waiver of

armed drones in Pakistan. See Br. for Defs.–Appellants 32, ACLU v. DOJ, No. 17-157 (2d Cir. Apr. 21, 2017), ECF No. 33. And tellingly, in that case, the government did not argue that the Secretary of State had not officially acknowledged that information because his public statements were not “official” (let alone because he lacked declassification authority)—even though the ACLU had anticipated that argument in its own brief. See Resp. Br. of Pls.–Appellees 25, ACLU v. DOJ, No. 17-157 (2d Cir. July 17, 2017), ECF No. 47. Instead, the government argued that the Secretary of State’s remarks did not “match” the classified information at issue. See Reply Br. for Defs.–Appellants 9–15, ACLU v. DOJ, No. 17-157 (2d Cir. Aug. 4, 2017), ECF No. 59. 26 The NSC is not subject to FOIA. See Main St. Legal Servs. v. NSC, 811 F.3d 542 (2d Cir. 2016). Even if it were, the ACLU would not argue that the Defense Department’s disclosures had waived the NSC’s ability to issue a Glomar response in this context. 27 The government seems to suggest that declassification and official acknowledgment are equivalent and identical processes. See Gov’t Br. 18. But whether certain public statements officially declassify particular information pursuant to Executive Order 13,526, and whether those statements officially acknowledge that information and waive FOIA exemptions, are separate inquiries. See, e.g., N.Y. Times Co., 314 F. Supp. 3d at 526–28.


19

Exemptions 1 and 5 has occurred” through official acknowledgment). Rather, Wilson was a First

Amendment challenge to the CIA’s censorship of classified information from the plaintiff’s

memoir, a context in which proper classification, not waiver, is the central issue. See Wilson, 586

F.3d at 183–86; see also Snepp v. United States, 444 U.S. 507 (1980).

Moreover, declassification authority has never been a mandatory part of the test for

“official disclosure” (which originated in the D.C. Circuit) in any context. Such a rule would be

flatly incompatible with the D.C. Circuit’s decision—and the government’s own arguments—in

Ameziane v. Obama, 699 F.3d 488 (D.C. Cir. 2012). There, the circuit court confronted whether

a district court order containing protected information—the fact that a Guantánamo detainee had

been cleared for transfer—could be unsealed, or whether the unsealing would officially

acknowledge the information. The government sought to keep the information sealed, arguing

that both the release of the information in a district court order, and the detainee’s lawyer’s

potential out-of-court statements relaying the information, would constitute official

acknowledgments. The D.C. Circuit agreed, with little trouble. See id. at 493 (observing that the

“district court order itself . . . would clearly constitute an official acknowledgment of [the

detainee’s] cleared status” (emphasis added)); id. (explaining that because the detainee’s attorney

was “an officer of the court, subject to the serious ethical obligations inherent in that position,”

any representations made by him “would be tantamount to, and a sufficient substitute for, official

acknowledgment by the U.S. government”); see also id. (“Although foreign governments would

be unlikely to rely on a claim by a third party—or even by [the detainee] himself—that [the

detainee] has been cleared for transfer, the same is not true with respect to a similar

representation made by counsel.”). While Ameziane involved protected (rather than classified)

information, the case makes plain that the government authority responsible for the protection of


20

information is not the sole entity that may “officially acknowledge” that information under the

three-part test.

Indeed, the concern the government identifies as animating its argument that

declassification authority is necessary to effectuate an official acknowledgment in FOIA

litigation is undermined by its own citations to Frugone. See Gov’t Br. 18. The government

quotes the Frugone court’s worry that if one agency could waive another’s ability to issue a

Glomar response, then “agencies of the Executive Branch—including those with no duties

related to national security—could obligate agencies with responsibility in that sphere to reveal

classified information.” Frugone, 169 F.3d at 775. But that case involved a potential waiver of

the CIA’s Glomar response, issued on the basis of likely harm to national security, through

public statements made by the Office of Personnel Management. See id. at 774–75.

Frugone is miles away from this case. There, the court refused to order the CIA to

abandon a Glomar response based on private correspondence from an agency with a very

different mandate—federal human resources and personnel policy—and without any control over

or expertise in national security. Here, the Defense Department, like the NSC, has duties specific

to and grounded in national security, and many of their duties are closely coordinated. In fact, the

Secretary of Defense is one of the six principal members of the NSC, while the Chairman of the

Joint Chiefs of Staff of the Armed Services is the NSC’s statutory military advisor.28

Unsurprisingly, it is obvious that high-ranking Defense Department officials were keenly aware

that the Report contained potentially sensitive material that required coordination and

classification review. See Ex. 2.2 at 1 (General Waldhauser: “I direct this investigation's

documentary evidence, findings, and recommendations be appropriately classified, declassified,

28 See White House, National Security Council, https://www.whitehouse.gov/nsc.


21

and coordinated for Freedom of Information Act (FOIA) processing.”); Ex. 2.1 at 4 (General

Waldhauser: “USAFRICOM will continue to coordinate for necessary declassification and

process the investigation for Freedom of Information Act and internal accessibility purposes.”).

Ultimately, the government’s position is at odds with the very foundation of the official

acknowledgment doctrine, which recognizes that it is illogical and implausible for the

government to insist that it cannot confirm or deny the existence of responsive records when a

government source “in a position to know of [the records] officially” has already admitted their

existence. Fitzgibbon, 911 F.2d at 765 (quoting Alfred A. Knopf, Inc., 509 F.2d at 1370). Indeed,

the government’s position, if adopted, would permit executive agencies to selectively discuss, in

public and with impunity, any classified information that they were not officially authorized to

declassify, even while they remained totally insulated from their disclosure obligations under

FOIA. (Absurdly, the government’s classification-authority argument would, if adopted, prevent

the Report from serving as an official acknowledgment even if it were still hosted on the Defense

Department’s website.) That result, exemplified by the government’s position in this litigation,

would utterly undercut the reason for FOIA’s existence: when it enacted FOIA, Congress voiced

pointed concerns about the tendency of government officials to provide the public with selective

and misleading statements about national security policies, and it explicitly crafted the legislation

to enable the public to evaluate those policies—and the government’s assertions about them—for

itself.29

29 In enacting the FOIA, Congress meant to curtail the government’s ability to use selective disclosure and overbroad withholding as a means of manipulating public debate. See, e.g., Republican Policy Committee Statement on Freedom of Information Legislation, S. 1160, 112 Cong. Rec. 13020 (1966) (“In this period of selective disclosures, managed news, half-truths, and admitted distortions, the need for this legislation is abundantly clear.”), reprinted in Subcomm. on Admin. Practice, S. Comm. on the Judiciary, 93d Cong., Freedom of Information


22

II. Independent of waiver, Defendants’ Glomar responses fail because the government’s justifications for them are vague, illogical, and implausible.

Even where it has not waived the ability to issue a Glomar response, an agency bears the

independent burden of demonstrating that, upon consideration of the entire record, the response

is justified by one of FOIA’s nine exemptions. See Florez, 829 F.3d at 186. In this case,

Defendants’ attempts to satisfy that burden fall well short.

Defendants have tethered their Glomar responses to FOIA Exemptions 1 and 3. See Gov’t

Br. 1. To justify a Glomar response under Exemption 1, the government bears the burden of

demonstrating that the existence or non-existence of responsive records “logically must remain

classified in the interest of national security.” Larson v. Dep’t of State, 565 F.3d 857, 864 (D.C.

Cir. 2009). To justify a Glomar response under Exemption 3, the government bears the burden of

demonstrating that the existence or non-existence of responsive records is “specifically exempted

from disclosure by [a] statute” other than FOIA. 5 U.S.C. § 552(b)(3). The government can meet

its burden under either exemption through a “particularly persuasive affidavit.” Florez, 829 F.3d

at 182 (citing N.Y. Times Co., 756 F.3d at 122). Such an affidavit must contain “reasonably

detailed explanations” of why the withheld information falls within a FOIA exemption. Ctr. for

Constitutional Rights v. CIA, 765 F.3d 161, 166 (2d Cir. 2014) (quoting Wilner, 592 F.3d at 69);

accord Florez, 829 F.3d at 182. A “vague or sweeping” affidavit, or one that rests predominantly

on legal conclusions, is not enough. Larson, 565 F.3d at 864; Hayden v. NSA/Cent. Sec. Serv.,

608 F.2d 1381, 1387 (D.C. Cir. 1979) (“The affidavits will not suffice if the agency’s claims are

Act Source Book: Legislative Materials, Cases, Articles, at 59 (1974) (“FOIA Source Book”); see also 112 Cong. Rec. 13031 (1966) (statement of Rep. Rumsfeld), reprinted in FOIA Source Book at 70 (“Certainly it has been the nature of Government to play down mistakes and to promote successes. . . . [This] bill will make it considerably more difficult for secrecy-minded bureaucrats to decide arbitrarily that the people should be denied access to information on the conduct of Government[.]”).


23

conclusory, merely reciting statutory standards, or if they are too vague or sweeping.”).

Even considered on their own, Defendants’ justifications for issuing their Glomar

responses are insufficient to carry the government’s burden. To support their invocations of

Exemptions 1 and 3, Defendants have submitted a declaration by Ellen J. Knight, an NSC

official responsible for the classification review of NSC information requested under FOIA.

Decl. of Ellen J. Knight (“Knight Decl.”) ¶ 3, ECF No. 30 (Feb. 26, 2020). But as to Exemption

1, the declaration consists of vague and conclusory statements that do not logically or plausibly

explain why revealing the existence or non-existence of the PSP would cause harm to national

security. Nowhere does the public version of the declaration explain—much less explain with

reasonable specificity—how the mere knowledge that the United States has issued new guidance

on the use of lethal force abroad, without any details on the contents of that guidance, could

possibly enable anyone to “avoid detection or targeting, or otherwise thwart military or

intelligence operations.” Knight Decl. ¶ 15.30 Likewise, the government’s declaration fails to

carry Defendants’ burden under Exemption 3 to establish that revealing the current status of the

PPG (and the mere existence of the PSP) would reveal intelligence sources and methods. See

Knight Decl. ¶¶ 26–27 (asserting that such disclosure “could undermine intelligence

operations . . . , which by their nature involve intelligence sources and methods”). The

declaration fails to explain how acknowledging the existence of the PSP or the current status of

the PPG would result in the unauthorized disclosure of intelligence sources and methods. The

only method implicated by the ACLU’s request appears to be the use of lethal force abroad

30 After all, acknowledging that the Trump administration has replaced the Obama administration’s 2013 guidelines would not compel Defendants to release the entirety of those guidelines publicly; it would merely require that the government search for records related to the PSP and justify any withholdings, including by redacting the actual PSP, on a case-by-case basis with reference to specific FOIA exemptions.


24

outside of war zones, but that the United States engages in such uses of lethal force, including

through the use of drones for targeted killing, is not a secret. See Drones FOIA, 710 F.3d at 429;

N.Y. Times Co., 756 F.3d at 115.

But even if the government’s declaration does meet Defendants’ initial burdens under

Exemptions 1 and 3, it fails to carry the government’s ultimate burden of persuasion because its

assertions are illogical and implausible in light of “the record as a whole.” Florez, 829 F.3d at

184 (quoting Ctr. for Constitutional Rights, 765 F.3d at 167). When, given the record as a whole,

an agency’s claimed justification for its Glomar response is neither logical nor plausible, the

agency’s Glomar response must give way. See id.; Yemen Raid FOIA, 322 F. Supp. 3d at 478–

79. This is particularly so when the government’s explanations for why it needs to withhold

responsive records are “called into question by contradictory evidence in the record.” Elec.

Privacy Info. Ctr., 678 F.3d at 931 (citing Gardels, 689 F.2d at 1105).

Critically, information publicly disclosed by one agency can render another agency’s

justification for maintaining a Glomar response illogical and implausible, even if the latter

agency has not formally waived its reliance on Glomar through official acknowledgment. See

Florez, 829 F.3d at 187. Indeed, the Second Circuit has made it perfectly clear that “the release

of information from a third party agency may . . . directly bear upon whether another agency’s

revelation of the existence or nonexistence of records reasonably could be expected to result in

damage to the national security.” Id. at 185 n.6 (quotation marks and citation omitted). Such

information may also “permit an inference contradicting an asserting agency’s Glomar response

under Exemption 3.” Id. As the Second Circuit stated in Florez, “[i]t defies reason [for] a district

court to deliberately bury its head in the sand to relevant and contradictory record evidence

solely because that evidence does not come from the very same agency seeking to assert a


25

Glomar response in order to avoid the strictures of FOIA.” Id. at 187.

This commonsense aspect of FOIA doctrine is enough on its own to resolve the present

controversy. The disclosures in the Report—which is record evidence—directly bear on, and

thoroughly undercut, all three Defendants’ asserted justifications for their Glomar responses. The

Report places two facts beyond doubt: first, that the PSP exists; second, that the PSP supersedes

the PPG. Thus, the Report “makes it implausible for any reasonable person to truly doubt the

existence of” a Trump administration policy on the use of force abroad that supersedes the

Obama administration’s 2013 PPG. Leopold v. CIA, No. CV 19-978 (RC), 2019 WL 5814026, at

*8 (D.D.C. Nov. 7, 2019).31 No amount of quibbling over recondite classification regimes can

obscure that simple and obvious truth.

As the D.C. Circuit put it when rejecting yet another implausible claim of secrecy in the

form of a Glomar response, “there comes a point where courts should not be ignorant as judges

of what they know as men and women.” Drones FOIA, 710 F.3d at 431 (cleaned up) (quoting

Watts v. Indiana, 338 U.S. 49, 52 (1949) (opinion of Frankfurter, J.)). Here, we passed that point

no later than June 5, 2019, when the Defense Department published and distributed the Report.

CONCLUSION

The ACLU respectfully requests that this Court (1) reject Defendants’ Glomar responses,

and (2) order Defendants to search for responsive records and either produce such records or

provide the ACLU with a Vaughn index of any records withheld (in whole or in part) based on

claimed exemptions.

31 The declaration also asserts, without elaboration, that “foreign governments may feel compelled to respond to official White House statements of policy.” Knight Decl. ¶ 23. But that is mere speculation, as the declarant does not even make an effort to logically explain why a foreign government could, in the spirit of “plausible deniability,” ignore General Waldhauser’s confirmation of the PSP—which, again, is record evidence—yet feel compelled to “respond” to confirmation by the NSC.”


26

Dated: March 25, 2020

Respectfully submitted, /s/ Brett Max Kaufman Brett Max Kaufman Charles Hogle (S.D.N.Y admission pending) Hina Shamsi American Civil Liberties Union Foundation

125 Broad Street—18th Floor New York, New York 10004 T: 212.549.2500 F: 212.549.2654 [email protected] Counsel for Plaintiffs


united states district court southern district of new …€¦ · three years ago, news reports...

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